Doe v. Mylan Pharmaceuticals, Inc.

Filing 42

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE, OR IN THE ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT (DKT. NO. 22 ). The Court DENIES Mylans motion to strike the amended complaint, GRANTS Mylans motion to dismiss and DISMISSES WITH PREJUDICE Count III of the amended complaint. Signed by District Judge Irene M. Keeley on 3/30/17. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN DOE,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV72
(Judge Keeley)

MYLAN PHARMACEUTICALS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
AND DISMISSING COUNT III WITH PREJUDICE
Pending before the Court is the motion to strike, or in the
alternative, motion to dismiss the amended complaint filed by the
defendant, Mylan Pharmaceuticals, Inc. (“Mylan”) (dkt. no. 22). For
the reasons that follow, the Court DENIES the motion to strike the
amended complaint, but GRANTS the motion to dismiss Count III of
the amended complaint.
I. STATEMENT OF THE CASE AND PROCEDURAL BACKGROUND
The plaintiff, John Doe (“Doe”), has been an employee of Mylan
Pharmaceuticals, Inc. (“Mylan”) since June 18, 2007. He suffers
from a seizure disorder, for which Mylan has provided reasonable
accommodations since he first started having seizures at work in
2008. Doe’s complaint alleges that he is able to perform his work
with reasonable accommodations, including using slower machines,
using machines that can shut off automatically and do not require

DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
climbing high ladders, and being visually checked on by others
every 15 minutes when wearing respirator gear.
Doe suffered a seizure on March 5, 2015, following which he
was off work until April 6, 2015. According to Doe, when he
returned to work he gave Mylan two notes from his neurologist,
dated March 25 and March 30, 2015, explaining that, although he
could return to work on April 6, he was restricted from driving or
operating heavy machinery for 6 months. Doe further alleges that
although he requested that Mylan provide the same accommodations he
had received in the past Mylan placed him on involuntary leave.
After Mylan’s Human Resources Manager refused to allow Doe to
return to work until the restrictions imposed by his doctor had
been lifted, Doe filed a complaint on May 2, 2015, with the West
Virginia Human Rights Commission and the U.S. Equal Employment
Opportunity Commission (“EEOC”).
After he received another note from his physician, Doe tried
to return to work on September 8, 2015. But because Mylan required
more documentation from his physician, Doe did not actually return
to

work

until

September

24,

2015.

He

alleges

that,

as

a

consequence, he was forced to use accrued vacation leave during
that interval in order to avoid incurring unpaid leave.
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
Doe alleges that, even after he returned to work, Mylan
continued to deny his disability accommodation requests. He further
asserts that he had to wear a Tyvex suit and work on high ladders
in rooms without padding or safety guards to protect him, even
though other rooms were available where Mylan could have stationed
him to work.
On December 17, 2015, one of the occasions when he was working
in a Tyvex suit and helmet, Doe had a seizure that sent him to the
hospital. The complaint alleges that, during the time of that
seizure, Mylan was not monitoring him every 15 minutes while he was
in the Tyvex suit, which Doe claims would have been the proper
accommodation. Doe returned to work on December 28, 2015, after
which

he

alleges

Mylan

continued

to

deny

his

requested

accommodations.
According to the complaint, a doctor in Mylan’s Medical Unit
made comments to Doe about the complaint he had filed with the
EEOC, which Doe interpreted as an attempt to threaten or discourage
him from exercising his rights1. Doe also asserts that, on February
22, 2016, he requested that Mylan move him to another room as an
1

Dr. Kinney said to Doe, “You’re not going to sue me, are
you?” and, “All that I’ve ever tried to do is just help you.”
(Dkt. No. 1-1 at 6).
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
accommodation. Although his supervisor complied, he later made
public

comments

reflecting

“a

condescending

and

retaliatory

attitude” toward the accommodation requests2 (dkt. no. 1-1 at 6).
On February 19, 2016, the EEOC issued a Notice of Right to Sue
under the ADA to Doe. On March 17, 2016, Doe filed a complaint in
the Circuit Court of Monongalia County, West Virginia.

Mylan

removed the case to this Court (dkt. no. 1), and filed its answer
on April 27, 2016 (dkt. no. 4).
The complaint asserted two counts against Mylan:
Count I:

Failure to Reasonably Accommodate Disability in
Violation of the West Virginia Human Rights Act

Count II: Violations of the Americans with Disabilities Act
(discrimination and retaliation)
Doe sought a declaration that Mylan violated the West Virginia
Human Rights Act (“WVHRA”) and the Americans with Disabilities Act
(“ADA”), and asked the Court to enjoin Mylan from discriminating
based on disability. He further sought remedial relief, “including
the extension of an offer of a position at [Doe’s] customary rate
of pay with retroactive seniority,” as well as other compensatory

2

The supervisor allegedly stated, “All right John, time to get
to work! Get going!” (Dkt. No. 1-1 at 6).
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
damages, attorney fees and costs, and any and all other just and
equitable relief.
The Court conducted a scheduling conference on August 11,
2016, during which it established a deadline of August 29, 2016,
for

the

parties

to

join

additional

parties

or

amend

their

pleadings. On August 30, 2016, Doe filed an amended complaint
asserting an additional claim for “Violation of the Family and
Medical Leave Act” (“FMLA”) (dkt. no. 21).3 On September 13, 2016,
Mylan moved to strike the amended complaint because Doe had filed
it one day past the deadline.

In the alternative, it moved to

dismiss the amended complaint for failure to state a claim (dkt.
no. 22).
On February 21, 2017, the parties filed a joint motion to
modify scheduling order and set scheduling conference (dkt. no.
32). The Court granted the motion and set a second scheduling
conference for March 1, 2017 (dkt. no. 33). During that conference,
the Court addressed the motion and, for the reasons stated on the
record, DENIED Mylan’s motion insofar as it sought to strike the

3

Although the
for interference
plaintiff conceded
that the claim was

amended complaint labels Count III as a claim
and retaliation in violation of the FMLA,
during the March 20, 2017, status conference
only for interference under the FMLA.
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
amended complaint. It also ordered additional briefing on Doe’s
FMLA interference claim and scheduled a status conference on March
20, 2017, to address the motion to dismiss and schedule the
remainder of the case. After reviewing the additional briefing, and
hearing argument from the parties during the March 20 status
conference, the Court GRANTED Mylan’ motion to dismiss Count III.
II. STANDARD OF REVIEW
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
However,

while

a

complaint

does

not

need

detailed

factual

allegations, a plaintiff’s obligation to provide the grounds of his
entitlement

to

relief

requires

more

than

mere

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Indeed, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). In considering whether the facts alleged are
sufficient, a court must determine if a complaint contains “enough

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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
facts to state a claim to relief that is plausible on its face.”
Anderson, 508 F.3d at 188 (quoting Twombly, 550 U.S. at 547).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of

a

complaint;

importantly,

it

does

not

resolve

contests

surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992). “But in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged in
the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6),” so long as “all facts necessary to the
affirmative

defense

‘clearly

appear[]

on

the

face

of

the

complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
III. DISCUSSION
Count III of Doe’s amended complaint alleges that Mylan
interfered with the use of his FMLA leave by (1) “forcing him to
use up his days of medical leave when he was not medically required
to be off work”; and (2) “by prohibiting him from returning to work
after he had requested that his FMLA days be preserved and after he
had presented a slip from his doctor noting that his temporary
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
accommodations were no longer required” (dkt. no. 22 at 1). Mylan
argues that Doe has failed to state a claim for a violation of the
FMLA and the claim therefore should be dismissed.
A.
Under the FMLA, an employee may take up “‘to a total of 12
workweeks of leave during any 12–month period’ when, inter alia, an
employee is burdened with ‘a serious health condition that makes
the employee unable to perform’ his job.” Adams v. Anne Arundel
County Public Schools, 789 F.3d 422, 426 (4th Cir. 2015) (quoting
29 U.S.C. § 2612(a)(1)(D)). “To make out an ‘interference’ claim
under the FMLA, an employee must thus demonstrate that (1) he is
entitled to an FMLA benefit; (2) his employer interfered with the
provision of that benefit; and (3) that interference caused harm.”
Adams, 789 F.3d at 427 (citing Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002)).
Following any FMLA leave, “an employee has the right to
reinstatement to his or her original position or an equivalent
post.” Vannoy v. Federal Reserve Bank of Richmond, 827 F.3d 296,
301 (4th Cir. 2016) (citing 29 U.S.C. § 2614(a)(1)). When reviewing
FMLA claims, the Court may “inquire into matters such as whether

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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
the employee would have exercised his or her FMLA rights in the
absence of the employer’s actions.” Id.
The parties do not dispute that Doe is entitled to an FMLA
benefit. The question presented in Count III is whether Mylan
interfered with Doe’s use of his FMLA leave and, if so, whether
that interference caused him harm. The crux of Doe’s argument is
that Mylan forced him to use his FMLA leave after it refused to
allow him to return to work with accommodations on April 30, 2015,
and again on September 8, 2015. This, however, does not state a
claim of interference with Doe’s exercise of his right to FMLA
leave. Doe has not alleged that he sought FMLA leave and was
denied, restrained, or otherwise prevented from using such leave.
His complaint alleges that Mylan refused to allow him to return to
work until after his doctor lifted his medical restrictions. Doe
does not cite, nor could the Court find, any legal precedent
supporting the contention that an employee’s continuation on FMLA
leave pending further assurances that the
return

to

work

supports

a

claim

for

employee is safe to

interference

with

the

employee’s use of FMLA leave.
In addition, the amended complaint discusses only potential
harms that could have occurred had Doe needed additional FMLA leave
later in 2015. Establishing a claim of interference with FMLA
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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
leave, however,

requires an allegation that the interference

caused harm — not that it could have caused harm. Adams, 789 F.3d
at 427; see also, Zvosecz v. Country Club Ret. Ctr. IV, LLC, 2015
WL 5074485 (S.D. Ohio Aug. 27, 2015) (discussing the failure of
hypothetical future interference allegations to establish a valid
claim of interference).
In his additional briefing, Doe argues that the FMLA provides
“that employers may not induce employees to waive their prospective
rights under the FMLA, such as by counting the time that an
employee receives a job accommodation as FMLA leave.” (Dkt. No. 37
at 1). This argument lacks merit.
Doe contends that, although Mylan was required to provide him
with a reasonable accommodation, it denied him “[his] rights to his
full twelve weeks of FMLA leave in 2015.” Id. at 5-6. He cites 73
FR 67934, 67989 for the rule that “the time the employee works in
the light duty assignment does not count as FMLA leave.” Thus, he
contends it was his choice either to take the light-duty assignment
or the FMLA leave, and, because he wanted the light-duty assignment
(i.e., an accommodation) and was denied, he was therefore forced to
use FMLA leave. This is a misreading of the regulation, which
simply

provides

that,

if

the

employee

accepts

a

light

duty

assignment offered by the employer, the employer cannot then count
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1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
that time against the employee’s FMLA leave time. Thus, had Mylan
offered Doe the light duty accommodation he requested, it could not
have counted time in that position against his FMLA leave.
Citing the same section of the Federal Register, Doe argues
that § 825.220(d) of the FMLA “prohibits the waiver or inducement
of waiver of prospective rights under the FMLA, such as when an
employee accepts a reasonable accommodation through a light duty
job or other such on-the-job accommodation as required by the ADA.”
73 FR 67934, 67989. Section 825.220(d) provides:
Employees cannot waive, nor may employers induce
employees to waive, their prospective rights under FMLA.
For example, employees (or their collective bargaining
representatives) cannot trade off the right to take FMLA
leave against some other benefit offered by the employer.
. . . Nor does it prevent an employee’s voluntary and
uncoerced acceptance (not as a condition of employment)
of a light duty assignment while recovering from a
serious health condition. See § 825.702(d). An employee’s
acceptance of such light duty assignment does not
constitute a waiver of the employee’s prospective rights,
including the right to be restored to the same position
the employee held at the time the employee’s FMLA leave
commenced or to an equivalent position. . . .
This regulation simply does not apply in this case. Doe never
waived his rights to exercise his FMLA leave, nor does he allege
that Mylan refused to reinstate him to his former position.
Additionally, as noted above, Mylan could not have counted any time

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DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
on light duty against Doe’s FMLA leave as no such accommodation was
offered to him.
The two cases on which Doe relies, Adams and Vannoy, do not
support his claim. In Vannoy, the Fourth Circuit vacated the
district court’s grant of summary judgment because the plaintiff’s
employer “provid[ed] him defective notice that omitted his right to
reinstatement at the conclusion of the medical leave term.” 827
F.3d at 298. Although Vannoy had received 30 days of FMLA leave, he
returned to work after just 5 days out of fear that his employer
would not reinstate him if he took the entire leave. The court
concluded that, even though the employer had granted Vannoy’s FMLA
leave request, the deficient notice he received raised a genuine
issue of material fact as to whether Vannoy would have taken the
entire

30

days

had

he

known

that

the

FMLA

guaranteed

his

reinstatement. In the instant case, there is no allegation that Doe
did not receive proper notice of his FMLA rights, or that, out of
ignorance, he truncated his FMLA leave.
Likewise, Adams does not advance Doe’s cause. Doe apparently
relies on Adams to support his contention that a claim under the
FMLA can still be properly pled even if the employer granted the
employee all the FMLA leave to which he was entitled. (Dkt. No. 37
at 3). Although such a general and broad premise may be true, Adams
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1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
is highly distinguishable. Adams’s interference claim was based on
his allegations that his employer had set up roadblocks meant to
discourage his use of FMLA leave, including requesting additional
medical testing, investigating his claims, and requiring him to
attend a meeting while on leave. 789 F.3d at 427. The Fourth
Circuit ultimately found that the employer’s actions did not rise
to the level of interference with Adams’s FMLA leave and, notably,
made the following observation:
We begin by noting one salient fact: Adams was not denied
FMLA leave. In fact, he took three separate medical
leaves totaling well over twelve weeks. The Supreme Court
has observed that the “purpose of [an interference claim]
is to permit a court to inquire into matters such as
whether the employee would have exercised his or her FMLA
rights in the absence of the employer’s actions.” Adams
has not suggested that the Board denied him any FMLA
leave he requested. On the contrary, Adams received more
than the statutorily guaranteed amount.
Adams, 789 F.3d at 427(internal citation omitted). Here too, Mylan
provided Doe with far more than 12 weeks of FMLA leave and he has
never suggested that Mylan denied any FMLA leave he sought. What
distinguishes Doe’s case from Adams is the fact that he never
alleges that Mylan put roadblocks up to his taking FMLA leave.
Indeed, the record reflects that Mylan went out of its way not only
to facilitate Doe’s FMLA leave but to require it based on his
medical conditions.

13

DOE V. MYLAN PHARMACEUTICALS, INC.

1:16CV72

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO STRIKE, OR IN THE
ALTERNATIVE, MOTION TO DISMISS AMENDED COMPLAINT [DKT. NO. 22]
At bottom, adding Count III is an attempt by Doe to include an
FMLA claim that is, at its essence, nothing more than his ADA
claim. Nowhere does his amended complaint allege that Doe sought
FMLA leave that Mylan either denied, interfered with, or otherwise
hindered. His argument that, but for having been forced to use all
of his FMLA leave, he would have been able to save it for further
use later in 2015, is speculative at best, and unsupported by any
allegation that at a particular time later in 2015 he needed or
wanted to take FMLA leave but could not do so because Mylan had
forced him to use it all.
IV. CONCLUSION
In conclusion, the Court DENIES Mylan’s motion to strike the
amended complaint, GRANTS Mylan’s motion to dismiss and DISMISSES
WITH PREJUDICE Count III of the amended complaint.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: March 30, 2017
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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